Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6225 OF 2008
[Arising out of SLP (Civil) No. 1610 of 2005]
Chet Ram …Appellant
Versus
Jit Singh …Respondents
WITH
CIVIL APPEAL NO. 6226 OF 2008
[Arising out of SLP (Civil) No. 7276 of 2005]
Harnek Singh …Appellant
Versus
Jaswant Singh …Respondents
J U D G M E N T
S.B. SINHA, J :
1. Leave granted.
2
2. Whether a Gramin Dak Sewak is a government servant and
consequently is disqualified to become a member of Nagar Panchayat in
terms of Section 11(g) of the Punjab State Election Commission Act, 1994
(for short “the Act”) is the question involved herein.
3. The fact of the matter is being noticed from Civil Appeal arising out
of SLP (C) No. 1610 of 2005.
Indisputably, while working as Gramin Dak Sewak, appellant
contested in an election for membership of Nagar Panchayat Sardulgarh
held on 9.03.2003.
Respondent No. 1 filed an election petition in terms of Sections 76,
79 and 89 of the Act and Rule 87 of the Punjab Municipal Election Rules,
1994 before the Election Tribunal. However, upon receipt of notice,
appellant submitted his resignation.
We must, however, place on record that Harnek Singh, appellant in
Civil Appeal arising out of SLP (C) No. 7276 of 2005, was chargesheeted
for participating in politics.
3
4. Contention of appellant that he was not a government employee
having been working on part time basis and, thus, was not disqualified in
terms of Section 11(g) of the Act was rejected by the Tribunal by reason of
its judgment and order dated 25.08.2004 inter alia holding that having
regard to the provisions of Rule 22(4) of the Department of Posts, Gramin
Dak Sewak (Conduct and Employment) Rules, 2001 (for short “the Rules”)
he stood disqualified.
5. An appeal was preferred thereagainst which was marked as FAO No.
4305 of 2004. By reason of the impugned judgment, the High Court held:
“The appellant is a part time employee of the post
office under the Central Government, outside
regular civil service. Nonetheless, he is holding
this post under the Government and he is also
entitled to protection under Article 311 of the
Constitution, in view of the judgment of the Apex
Court in Rajamma’s case (supra) and other
judgments. He is also getting remuneration by
way of salary. He is appointed by and paid by
Central Government and is under direct control of
the Central Government. Case of Madhukar G.E.
Pankakar (supra) relating to Insurance Medical
practitioner appointed under the provisions of ESI
Act is different. In the said case, the employee
was not being paid directly by the Government nor
was control of the Government direct, as observed
in para 40 of the judgment. In the present case,
position is different. The appellant was, thus,
rightly held to be disqualified from contesting
election.”
4
Appellant is, thus, before us.
6. Mr. Punit Leekha, learned counsel appearing on behalf of the
appellant would submit that a part time employee working in a post office
does not hold any office of profit under the government and, therefore, the
impugned judgment cannot be sustained. Strong reliance in this behalf has
been placed on Madhukar G.E. Pankakar v. Jaswant Chobbildas Rajani and
Others [(1977) 1 SCC 70].
7. The learned counsel appearing on behalf of the respondent, on the
other hand, would support the judgment.
8. The Act was enacted for constitution of a State Election Commission
and for vesting the superintendence, direction and control of the preparation
of electoral rolls for, and the conduct of all elections to the Panchayats and
Municipalities in the State of Punjab.
Chapter II of the Act provides for constitution of the State Election
Commission. Chapter IV of the Act provides for disqualifications. Section
11 of the Act provides that a person shall be disqualified for being chosen as
5
and for being a member of a Panchayat or a Municipality inter alia if he
holds an office of profit under the Government of India or any State
Government.
9. Indisputably, the terms and conditions of a Gramin Dak Sewak are
governed by the provisions of the Rules; Sub-rule (4) of Rule 22 whereof
reads as under:
“(4) No Sevak shall canvass or otherwise
interfere with or use his influence in connection
with, or take part in an election to any legislative
or local authority;”
The said Rules were framed in terms of proviso appended to Article
309 of the Constitution of India. The terms and conditions of employment
of a Gramin Dak Sewak are governed by statutory rules.
The Rules framed in terms of the proviso appended to Article 309 of
the Constitution of India indisputably govern only government employees.
It was, therefore, for appellant to show that he was not governed by the
Rules. As noticed hereinbefore, Section 11(g) of the Act lays down the
conditions for disqualification. Section 12 of the Act provides that if a
question arises as to whether a member of any Panchayat or Municipality
6
has become subject to any of the disqualifications specified in Article 243F
or 243V of the Constitution of India or in Section 11 of the Act, the
question shall be referred for decision of the State Government and its
decision shall be final. It has furthermore been provided that before giving
any decision on such question, the State Government shall obtain the
opinion of the Election Commission and shall act in accordance thereof.
The same, however, would not mean that the Election Tribunal was
not competent to decide the question as to whether the returned candidate
was or was not qualified for being chosen as a member of Panchayat or
Municipality.
10. Chapter XII of the Act deals with election petitions. Section 73 of the
Act provides for constitution of an Election Tribunal. Section 74 mandates
that no election shall be called in question except by an election petition
presented in accordance with the provision of Chapter XII. Section 75 lays
down that only the Election Tribunal having jurisdiction shall have the
power to adjudicate upon the election petitions. Section 79 provides that an
applicant may in addition to claiming a declaration that the election of all or
any of the returned candidates is void, may claim a further declaration that
he himself or any other candidate may be declared as duly elected. Various
7
provisions have been laid down as regards procedures to be followed in
such petitions.
11. When an election petition is filed, all questions which arise for
consideration by the Tribunal must be adjudicated upon on the basis of the
materials brought on record by the parties. As regards eligibility of a
candidate to contest in an election of the municipalities in question, the
Tribunal had jurisdiction to determine the same. A finding has been arrived
at by it on the basis of the materials brought on record that appellants were
government employees. It is not denied or disputed that their terms and
conditions of service were governed by the statutory rules.
In Madhukar G.E. Pankakar (supra), whereupon reliance has been
placed by Mr. Leekha, this Court in regard to the question as to whether an
employee falls within the description of “office of profit under government”
opined that for holding an office of profit under government one need not
be in the service of government and there need not be any relationship of
master and servant. It was furthermore held that all factors need not be
conjointly present. However, as the petitioners therein were only insurance
medical practitioners, it was held that they did not hold any office of profit
inasmuch as the services rendered by them have no substantial link with the
8
end, viz., the possible misuse of position as insurance medical practitioner
in doing his duties as Municipal President.
We are conscious of the fact that Madhukar G.E. Pankakar (supra)
has been referred to subsequently by this Court in Shibu Soren v. Dayanand
Sahay and Others [(2001) 7 SCC 425] and M.V. Rajashekaran and Others v.
Vatal Nagaraj and Others [(2002) 2 SCC 704].
Whereas in the case of Shibu Soren (supra), the applicant was
nominated by the State Government as the Chairman of the Interim
Jharkhand Area Autonomous Council, which was a statutory organization,
in the case of M.V. Rajashekaran (supra), the applicant was only a member
of a Commission.
In Shibu Soren (supra), this Court held:
“36. The question whether a person holds an
office of profit, as already noticed, is required to
be interpreted in a realistic manner having regard
to the facts and circumstances of each case and
relevant statutory provisions. While “a strict and
narrow construction” may not be adopted which
may have the effect of “shutting off many
prominent and other eligible persons to contest the
elections” but at the same time “in dealing with a
statutory provision which imposes a
9
disqualification on a citizen it would be
unreasonable to take merely a broad and general
view and ignore the essential points”. The
approach which appeals to us to interpret the
expression “office of profit” is that it should be
interpreted with the flavour of reality bearing in
mind the object for enactment of Article 102(1)( a ),
namely, to eliminate or in any event to reduce the
risk of conflict between the duty and interest
amongst members of the legislature by ensuring
that the legislature does not have persons who
receive benefits from the executive and may thus
be amenable to its influence.”
The legal principles enunciated in Shibu Soren (supra) were followed
in M.V. Rajashekaran (supra) holding:
“…A conspectus of the aforesaid decisions of
this Court unequivocally therefore indicates that
the question has to be answered depending upon
the facts peculiar to the case in hand with the
object of finding out whether in fact the
Government retains some control over the post
which the incumbent was holding at the time of
filing of nomination and was there any profit
attached to the post in question. The underlined
idea obviously is, that it should be free from any
pressure from the Government so that there can be
no conflict in discharge of his independent duties
as a Member of the Legislative Assembly or the
Legislative Council…”
The government employees are prohibited from taking part in election
to a Panchayat or Nagar Panchayat. Such prohibition was introduced for
10
obvious reasons. The legislative object in making the Rules is very clear,
viz., the status enjoyed by a candidate shall not be allowed to be prejudicial
vis-à-vis a candidate who does not enjoy such a status.
In Guru Gobinda Basu v. Sankari Prasad Ghosal and Others [AIR
1964 SC 254 : (1964) 4 SCR 311], this Court held that an auditor of two
government companies held an office of profit under government within the
meaning of Article 102(1)(a) of the Constitution of India stating:
“Learned counsel for the respondents has been
content to argue before us on the basis that the two
companies having been incorporated under the
Indian Companies Act, 1956 are separate legal
entities distinct from Government. Even on that
footing he has contended that in view of the
provisions of Section 619 and other provisions of
the Indian Companies Act, 1956, an auditor
appointed by the Central Government and liable to
be removed from office by the same Government,
is a holder of an office of profit under the
Government in respect of a company which is
really a hundred per cent Government Company.
12. We think that this contention is correct. We
agree with the High Court that for holding an
office of profit under the Government, one need
not be in the service of Government and there
need be no relationship of master and servant
between them. The Constitution itself makes a
distinction between ‘the holder of an office of
profit under the Government’ and ‘the holder of a
post or service under the Government’; see
Articles 309 and 314. The Constitution has also
made a distinction between ‘the holder of an office
11
of profit under the Government’ and ‘the holder of
an office of profit under a local or other authority
subject to the control of Government’; see Articles
58(2) and 66(4). In Maulana Abdul Shakur v.
Rishab Chand the appellant was the manager of a
school run by a committee of management formed
under the provisions of the Durgah Khwaja Saheb
Act, 1955. He was appointed by the administrator
of the Durgah and was paid Rs 100 per month.
The question arose whether he was disqualified to
be chosen as a member of Parliament in view of
Article 102(1)( a ) of the Constitution. It was
contended for the respondent in that case that
under Sections 5 and 9 of the Durgah Khwaja
Saheb Act, 1955 the Government of India had the
power of appointment and removal of members of
the committee of management as also the power to
appoint the administrator in consultation with the
committee; therefore the appellant was under the
control and supervision of the Government and
that therefore he was holding an office of profit
under the Government of India. This contention
was repelled and this Court pointed out the
distinction between ‘the holder of an office of
profit Government’ and ‘the holder of an office of
profit under some other authority subject to the
control of Government’. Mr Chaudhuri has
contended before us that the decision is in his
favour. He has argued that the appellant in the
present case holds an office of profit under the
Durgapur Projects Ltd. and the Hindustan Steel
Ltd. which are incorporated under the Indian
Companies Act; the fact that the Comptroller and
Auditor-General or even the Government of India
exercises some control does not make the
appellant any the less a holder of office under the
two companies. We do not think that this line of
argument is correct.”
12
[See also Pradyut Bordoloi v. Swapan Roy (2001) 2 SCC 19]
Jaya Bachchan v. Union of India [(2006) 5 SCC 266] was another
case, where a similar question arose for consideration. It was held:
“6. Clause (1)(a) of Article 102 provides that a
person shall be disqualified for being chosen as,
and for being, a member of either House of
Parliament if he holds any office of profit under
the Government of India or the Government of any
State, other than an office declared by Parliament
by law not to disqualify its holder. The term
“holds an office of profit” though not defined, has
been the subject-matter of interpretation, in several
decisions of this Court. An office of profit is an
office which is capable of yielding a profit or
pecuniary gain. Holding an office under the
Central or State Government, to which some pay,
salary, emolument, remuneration or non-
compensatory allowance is attached, is “holding
an office of profit”. The question whether a person
holds an office of profit is required to be
interpreted in a realistic manner. Nature of the
payment must be considered as a matter of
substance
rather than of form. Nomenclature
is not important. In fact, mere use of the word
“honorarium” cannot take the payment out of the
purview of profit, if there is pecuniary gain for the
recipient. Payment of honorarium, in addition to
daily allowances in the nature of compensatory
allowances, rent free accommodation and
chauffeur driven car at State expense, are clearly
in the nature of remuneration and a source of
pecuniary gain and hence constitute profit. For
deciding the question as to whether one is holding
an office of profit or not, what is relevant is
13
whether the office is capable of yielding a profit or
pecuniary gain and not whether the person actually
obtained a monetary gain. If the “pecuniary gain”
is “receivable” in connection with the office then
it becomes an office of profit, irrespective of
whether such pecuniary gain is actually received
or not. If the office carries with it, or entitles the
holder to, any pecuniary gain other than
reimbursement of out of pocket/actual expenses,
then the office will be an office of profit for the
purpose of Article 102(1)(a). This position of law
stands settled for over half a century commencing
from the decisions of Ravanna Subanna v. G.S.
Kaggeerappa, Shivamurthy Swami Inamdar v.
Agadi Sanganna Andanappa, Satrucharla
Chandrasekhar Raju v. Vyricherla Pradeep Kumar
Dev and Shibu Soren v. Dayanand Sahay.”
12. In Union of India and Others v. Kameshwar Prasad [(1997) 11 SCC
650], it was held:
“2. The Extra Departmental Agents system in
the Department of Posts and Telegraphs is in
vogue since 1854. The object underlying it is to
cater to postal needs of the rural communities
dispersed in remote areas. The system avails of the
services of schoolmasters, shopkeepers, landlords
and such other persons in a village who have the
faculty of reasonable standard of literacy and
adequate means of livelihood and who, therefore,
in their leisure can assist the Department by way
of gainful avocation and social service in
ministering to the rural communities in their postal
needs, through maintenance of simple accounts
and adherence to minimum procedural formalities,
as prescribed by the Department for the purpose.
[See: Swamy’s Compilation of Service Rules for
14
Extra Departmental Staff in Postal Department
p. 1.]
3. The Extra Departmental Agents are
government servants holding a civil post and are
entitled to the protection of Article 311(2) of the
Constitution (See: Supdt. of Post Offices v. P.K.
Rajamma ). They are governed by separate set of
rules, viz., the Posts and Telegraphs Extra
Departmental Agents (Conduct and Service)
Rules, 1964 (hereinafter referred to as “the
Rules”). The Central Civil Services
(Classification, Control and Appeal) Rules are not
applicable to this category of employees in view of
the notification dated 28-2-1957 issued by the
Government of India under Rule 3(3) of the said
Rules.”
13. In view of the aforementioned authoritative pronouncements, the
High Court must be held to be correct in arriving at its opinion that
appellants were disqualified from contesting in the election of Nagar
Panchayats. The appeals are dismissed accordingly. No costs.
………………………….J.
[S.B. Sinha]
..…………………………J.
[Cyriac Joseph]
New Delhi;
October 22, 2008
15